Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-05-13

On the trial of this cause the court gave
the following charge in effect: If D. B.
Grigsby was party to the partition and
was allotted portion of the land and
after coming of age sold it he is bound by
the law of implied warranty, and the said
| D. B. Grigsby not being disturbed in his
possession or evicted, cannot recover in
this suit. Under this instruction iude-
ment was entered against D. B.
Grigsby. It is now insisted that
this charge was incorrect. That
there is an implied warranty in COM
pulsory partition is true. In considering
this rule we must consider it's reasons,
which are well stated in Ross VS.. Arm
strong, (25 Tex. $3.50 Implied warranty
was annexed to compulsory partition be-
cause the co-parceners should not be
placed in a worse condition than before
nartition, where if a paramount title
set up all would be implicated, and in
case of recovery all would have sustained
a proportionate loss. Partition is based
on the fact that the thing partitioned is
owned by the parties between whom it is
made, and if they own it only
! in part, the part not owned
being set apart to some of
the coparceners, they really get nothing.
The rule of implied warranty protects the
latter. By it protection is given through
repaI tition. The implied warranty in
case of partition is not like 8 general
warranty in deed, because in repair
tition through defect in the common title,
one of the coparceners only has such
part of the land as makes his proportion
ate part Of that owned at time of parti-
ton. If this were not so the implied
warranty in partition would be the
means of acquiring title to something to
which the parties had no title. In the
case before US there has been no failure
Of title to any part of the land which
belonged to John Grigsby; no one OF the
heirs is called upon to surrender any part
of the land which such heir inherited,
| though they may be compelled to submit
to repartition. If implied warranty re-
fers to one of the parties of this case it
refers to all.
The right of the children of Grigsby by
his first wife to one-eighteenth is full and
complete, but how could they inherit
double amount? D. B. Grigsby seeks
| to recover the other half of his property,
and implied warranty cannot operate
against him. To permit him to recover
what he is entitled to deprives no person
of what they were entitled to. The
charge complained of was error. The
appellee bought from Emeline Grigsby,
and there is no reason why he and others
similarly placed may not be fully pro-
tected by having the land they bought.
The Judgment is reversed and the cause
remanded.
Jefferson Peak vs.. Maria and Louisa
Swindle, from Dallas; opinion by Stay
ton, a. J. A history of this case may be
found in the cases of Caruth & Grigsby
VS.. Peak, 81 Texas. The main question
| for consideration in this case is as to the
running of the statute of limitations.
! Appellee, "a minor, married August "a, 1859,
| from which time the statute of limitations
| BEGAN to run and continued until Janu-
airy %, 1861, when they ceased running
until September 2, 1886, and commenced
again and went on until the constitution
of 1869 went into effect. Appellant
asked the court to instruct the jury
that the constitution of 1869 did not
90 into effect until March 80, 1870, which
was refused. If the statute ran until
March 80, 1870, then adverse possession
continued for a sufficient time to bar ap-
pellee's right, but if the constitution of
1869 became operative from the time it
was ratified by the people adverse posses
sion did not continue long enough. The
constitutional convention adjourned Feb
ruary 6, 1869, after framing constitution
| and the Presidant of the United States
| issued q proclamation April 10, 1862 or
dering an election to be held November
so, 1869. The election was held and the
constitution ratified. The proclamation
above at the same time provided for the
g ~
the Legislature and all the state officers
provided for by the constitution to be
submitted. The same act fixed the time
of the meeting of Legislature, which met
February s, 1870, and subsequently rati-
fed the thirteen, fourteen and fifteen
amendments of the United States consti-
tuition, and elected Senators. By the act
OF March 80. 1870, this state was admitted
to representation in Congress; that act
recited that the state constitution had
been adopted, and the Legislature elected
under it. This shows that Congress was
of the opinion that the constitution took
effect from its adoption. Look at the
owe the people of Texas, do
hereby ordain and establish this constitu,
ton" The people adopted the
!
action of congress related only tt
our representation in that body
The constitution provided for things tc
be done before March 80, 1870, which
were done IN accordance with its provis-
ions. The officers who were elected a.
the same election commenced the duties
of their office from the time of their quail
fication, ETC., in compliance with the pro-
visions of the constitution.
In Compbell VS.. Fields (35 Tex. 352) i
, was held that section AZ article IL gave s
: mechanics lien during the months OF Jan
: uary, February and March, 1870. In r.
Deckert @ Hughes c. c., q. S. 1879 Chic
J Justice Waite decided in case similar
/ to this that the constitution OF Virgini;
2 took effect from its ratification by the PEG
2 pie. Viewing all these cases it will be seel
/ that the bar of five years did not exist a.
the time of the adoption of the constitu
ton and with it came longer in order t.
| allow the bar of the statute to take effect
The Judgment before US must be con
elusive of the fact that appellee has it'll
r as tenant in common. The right OF ap
! pellee is to One-siXth of all the land de-